648 So. 2d 625 | Ala. Crim. App. | 1994
The opinion of September 30, 1993, is withdrawn and the following is substituted therefor.
The appellant, Tony Howard, was convicted of being in possession of a pistol after having been convicted of a crime of violence, in violation of §
Findings of fact by the trial court are presumed to be correct and will not be overturned on appeal unless they are clearly erroneous. Ex parte Frazier,
"[PROSECUTOR]: . . . It was different in Christopher Terry's trial.
"[DEFENSE COUNSEL]: Object and move to strike.
"THE COURT: I sustain.
"[DEFENSE COUNSEL]: I would like instructions to the jury, Your Honor.
"THE COURT: I sustained the objection. Disregard that last statement.
"[PROSECUTOR]: . . . It was different in yesterday's trial.
"[DEFENSE COUNSEL]: Object and move to strike. Different from what?
"[PROSECUTOR]: Her testimony was different from yesterday's trial.
"[DEFENSE COUNSEL]: Objection; there's no evidence of that.
"[PROSECUTOR]: It was different from yesterday's trial. She changed it.
"[DEFENSE COUNSEL]: Okay, if that's what you're saying."
"[PROSECUTOR]: . . . Ladies and gentlemen, this is a report that the police officers, the detectives, write as part of their investigation. The officer on the scene writes one as well. What it does, it keeps fresh on paper what is —
"[DEFENSE COUNSEL]: Objection. There is not evidence — he's testifying to facts [not] in evidence.
"[PROSECUTOR]: I'm explaining what this is.
"THE COURT: Reasonable inferences therefrom.
"[PROSECUTOR]: Thank you, Judge."
Because the appellant's objection to the prosecutor's initial comments regarding a previous trial was sustained, there is no adverse ruling for this court to review. See, e.g., *628 Hill v. State,
There was no objection made to the appellant's sentencing on this ground made at trial. However, this sentencing error, if any, is jurisdictional and is therefore not subject to waiver.City of Birmingham v. Perry,
In Graves v. State,
In State v. Gholston, 620 So.2d at 724, the Alabama Supreme Court stated:
"[W]e conclude that the intent of the legislature, as shown by the plain language of the statute, is that the sentence for a conviction for unlawful possession of a pistol under §
13A-11-72 (a) can be enhanced by the Habitual Felony Offender Act when the prior conviction for a 'crime of violence' is also a prior 'felony' conviction. The Court of Criminal Appeals, in Nunnery v. State,410 So.2d 444 ,448 (Ala.Cr.App. 1981), held that unlawful possession of a pistol by a person convicted of a crime of violence is a felony and that the Habitual Felony Offender Act applies to such a conviction. The Habitual Felony Offender Act is mandatory and must be applied whenever a repeat offender with a prior felony conviction is convicted of another felony. See, e.g., §13A-5-9 (a), Ala. Code 1975 ('In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows: . . .' (emphasis added)); see also Watson v. State,392 So.2d 1274 (Ala.Cr.App. 1980), cert. denied,392 So.2d 1280 (Ala. 1981). Because a violation of §13A-11-72 (a) is a felony, and the Habitual Felony Offender Act, §13A-5-9 , requires that every sentence for a felony conviction be enhanced when the defendant has a previous felony conviction, we hold that the apparent legislative intent is that the sentence upon conviction for unlawful possession of a firearm by a person convicted of a crime of violence is to be enhanced by the Habitual Felony Offender Act if the prior conviction was a felony conviction. . . ."
Therefore, the appellant was properly sentenced pursuant to the Habitual Felony Offender Act.
APPLICATION GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
All Judges concur.